Let judges decide in drug cases

March 16, 2006|By ARTHUR L. BURNETT SR.

WASHINGTON — In an article March 16, "Let judges decide in drug cases," the statement that drug addiction costs Maryland "upward of $1 billion a year in lost wages, lost productivity and growing criminal justice costs," was an opinion of the author's and not a fact.

WASHINGTON -- Every state in the country, including Maryland, must take a thorough look at returning some discretion to judges about sentencing, and reconsider whether our drug laws are effectively promoting rehabilitation, full recovery from addiction and public safety.

Maryland is especially poised to revisit how it treats people convicted of drug offenses. In 2003, Gov. Robert L. Ehrlich Jr. invited Marylanders to support his inaugural pledge to "work together to get nonviolent drug offenders out of jail and into treatment programs, where they belong."

In a bipartisan breakthrough, he signed "treatment, not incarceration" legislation. It set a new policy presumption in Maryland that the state should seek to move nonviolent, low-level drug offenders into drug treatment whenever it is commensurate with public safety.

Maryland's mandatory minimum sentences continue to be a significant barrier to realizing the goal of "treatment, not incarceration." The system traditionally permits judges to weigh all of the facts of a case when determining someone's sentence, including, sometimes, diversion to treatment, when it is appropriate.

Restoring judicial discretion permits a judge to tailor a sentence to the facts applicable to the individual offender and the circumstances of his or her culpability as to the offense. But many state legislatures, including Maryland's, passed laws that force judges to give fixed prison terms to those convicted of specific crimes without regard to the circumstances involving that individual.

Lawmakers believed these laws would catch those at the top of the drug trade and deter others from entering it. Instead, such laws have resulted in low-level street dealers and users receiving long prison sentences at inordinate costs to the taxpayers.

While these laws have imprisoned some drug kingpins and big-time drug dealers, mandatory minimums are regularly invoked against low-level substance abusers trying to support their drug habits.

These people buy street-level retail quantities, sell some, use some and do it all over again. As a result, people in need of treatment end up getting long prison sentences. And because they are in a prison cell costing taxpayers $24,000 a year or more, they also drain resources that could be diverted to more serious criminal behavior involving violent offenders against our citizens.

Further, some of the money used for unnecessary incarceration could be more effectively diverted to staffing and implementing drug treatment programs with far better results.

Reducing judges' discretion over drug sentences also impacts low-level addict sellers another way: It criminalizes a common and critical component of recovery - relapse. Mandatory sentences are frequently invoked against repeat offenders. By definition, however, almost all recovering users are repeat offenders because relapse is part of recovery. Under mandatory sentencing laws, a person's subsequent relapse can land him or her in prison for 10 to 40 years.

Under a bill now before the House of Delegates, Maryland would have an opportunity to remove the barrier to realizing "treatment, not incarceration." The bill would allow a judge the option of imposing a suspended sentence and placing the offender in a meaningful drug treatment program or allow him or her to be eligible for parole at some point, if facts show he or she is amenable to treatment.

Treatment programs could even be started in prison, and the degree of progress made by the inmate could determine when he or she would be eligible for parole. And the bill would not affect drug kingpins or large-volume drug dealers, who could still be required to serve long prison sentences.

Maryland could choose to join Michigan, Kansas, Mississippi and the 18 other states that recently have returned discretion to judges or restructured harsh penalties to allow for lesser penalties and drug treatment.

With drug and alcohol addiction costing the state upward of $1 billion a year in lost wages, lost productivity and growing criminal justice costs, can Maryland afford to take the least-effective policy route to curbing addiction?

Returning discretion to judges under a narrow range of drug cases would help Maryland realize its goal of treating public health problems through the public health system, where these problems can be solved.

Arthur L. Burnett Sr., a senior judge on the Superior Court of the District of Columbia, is the national executive director of the National African American Drug Policy Coalition. His e-mail is aburnettsr@aol.com.